Private Business Counsel

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Game On

One of the most sought after toys of the 2016 holiday season was Nintendo’s NES Classic Edition. Retailing for $59.99, the NES Classic Edition allows you to play 30 classic late 1980s – early 1990s games originally released on the Nintendo Entertainment system, such as Super Mario Bros. and The Legend of Zelda. The NES Classic proved so popular that it sold out almost immediately.

While some nostalgic people, like this author, wait patiently until more NES Classic Edition consoles are released, some owners have decided that the chance to help Mario save the princess one more time isn’t enough. These gamers have hacked the NES Classic Edition to install new games. The games being installed on the hacked systems are often referred to as ROMs and are pirated versions of other original Nintendo games.

Software piracy has existed long before the release of the NES Classic Edition and the industry has fought it in much the same way as the music industry, if perhaps a little less zealously. Further, piracy is not limited to a gamer installing ROMs of their favorite games, but can extend to a number of actions, including the all-too-common occurrence of a person or business installing an unauthorized copy of a business or word processing suite on their computer. Most importantly, it is not a practice without risks.

Software piracy is a form of copyright infringement and will be treated very similarly to other forms of copyright infringement such as reprinting a book. While in some cases software piracy faces criminal law, the more common risk is that of a civil action against the infringer. Under 17 U.S. Code §504, the copyright owner can choose between actual damages and statutory damages. Actual damages reflect the amount lost by the copyright owner due to the infringement and the profits attributed to the infringement. The statutory damages can vary from a few hundred dollars for an unintentional infringement to $150,000 for willful or intentional infringement. In many cases, the statutory model is used as it can be difficult to prove the actual damages. For these reasons, as well as a general belief that people should be able to protect their creations, software piracy is not recommended.